IN THE NEAR FUTURE, Newsday and its reporter Timothy Phelps are likely to be very much in the news. The story will be about our refusal to disclose just how and where he obtained information that led to the first news reports of sexual harassment allegations against Supreme Court Justice nominee Clarence Thomas.
Newsday and Mr. Phelps already have told the U.S. Senate's special counsel that we will not reveal undisclosed sources and will not discuss unpublished information. The counsel, in turn, has indicated that his next step may be the issuance of a subpoena to try to compel testimony under oath.
Such a subpoena would be wrong; it would be unwarranted, improper and ill-advised. We will oppose it, as is our right.
But it's also our responsibility to oppose it. Because by protecting our rights, we are protecting your right to know information that is both important and true. I believe this so strongly that I wanted to let you know not only what is happening, but why we are refusing to cooperate in this hunt.
Let me summarize what has happened to date and then discuss the issues.
On Saturday, Oct. 5, 1991, Phelps first reported that University of Oklahoma law school professor Anita Hill had informed the FBI that she had been sexually harassed by Mr. Thomas while employed at the Equal Employment Opportunity Commission. That story, which was distributed to hundreds of newspapers Saturday night by the Los Angeles Times-Washington Post News Service, was published in the early editions of the next day's newspapers. In addition, Nina Totenberg of National Public Radio, who also had been researching the story Saturday, broadcast a report later Sunday morning on NPR that contained nearly identical charges.
The stories detailed the allegations and noted that, while key members of the Senate Judiciary Committee were aware of the charges, the committee had decided not to make them public before the nomination was sent to the full Senate for a vote. As all of you are aware, the news reports led to a reopening of the confirmation hearings and touched off a national debate -- a debate not just about the allegations but also about the Senate confirmation process and about the nature and extent of sexual harassment in the country today.
The Newsday story, which was confirmed by Ms. Hill before publication, was the result of a long and careful journalistic effort by Mr. Phelps. It was not an isolated story but a part of an extensive series of detailed and thoughtful reports that Mr. Phelps had done on Mr. Thomas and the confirmation process dating back to early July, when the nomination was announced.
There has been no charge that the story was inaccurate. In fact, every word of the story was true. And there has been no suggestion that either Mr. Phelps or Ms. Totenberg broke any laws or violated any Senate rules in reporting their stories. Nonetheless, one outgrowth of the furor that resulted was Senate Resolution 202, authorizing an investigation by a special counsel into whether "any unauthorized disclosure of non-public confidential information from Senate documents" had taken place.
The special counsel has now been appointed. He is equipped with the power to obtain subpoenas and is armed with the resources of Congress' General Accounting Office and the FBI.
Mr. Phelps, Newsday and Ms. Totenberg have been contacted by the special counsel, who has asked that they disclose the sources of information in their reports. Newsday and Mr. Phelps have stated that they will not reveal to the Senate's investigator undisclosed sources and will not discuss unpublished information. A similar position has been taken by Ms. Totenberg. The special counsel has implied that his next move may be to issue a subpoena to compel them to testify under oath concerning their sources.
We think this is wrong-headed and improper for several reasons. As you read this, keep in mind this basic truth: While the First Amendment in practice protects the freedom of the press, its objective is to protect your right to information, free from government interference.
First, Newsday and Mr. Phelps did nothing wrong. We published an unquestionably accurate account of a serious allegation regarding a nominee to the nation's highest court. The information clearly was a matter of legitimate public concern respecting a vital public issue. The Supreme Court repeatedly has recognized that such reporting is entitled to the greatest protection available under the First Amendment.
Second, the Supreme Court also has recognized that the gathering of news is an essential and inseparable component of the dissemination of news. Information must be obtained before it can be reported. Responsible newspapers, like Newsday, then verify it. And securing information of interest to the public sometimes requires the press to make commitments to sources that their identities will not be disclosed.